Warren City Council v. Buffa

333 Mich.App. 422

960 N.W.2d 166

WARREN CITY COUNCIL, Plaintiff-Appellant,

v.Sonja BUFFA and Fred Miller, Defendants-Appellees.

No. 354663

Court of Appeals of Michigan.

Submitted September 2, 2020, at Lansing.

Decided September 2, 2020, 9:00 a.m.

Plunkett Cooney, Bloomfield Hills (by Robert G. Kamenec and Jeffrey M. Schroder) for Warren City Council.

The Smith Appellate Law Firm (by Michael F. Smith ) and Allen Brothers, PLLC, Detroit (by James P. Allen, Sr.) for Sonja Buffa.

Frank Krycia, Macomb County Corporation Counsel, for Fred Miller.

Before: O'Brien, P.J., and Cavanagh and Jansen, JJ.

Per Curiam.

Plaintiff, the Warren City Council, appeals as of right the trial court's order denying plaintiff's request for a writ of mandamus compelling defendant Sonja Buffa, the Warren City Clerk, to certify ballot language to the Macomb County Clerk (defendant Fred Miller) pursuant to MCL 168.646a(2). We reverse and order Buffa to immediately certify the ballot language to the Macomb County Clerk pursuant to MCL 168.646a(2).

I. BACKGROUND

At issue in this matter is a ballot proposal that, if approved by the voters at the upcoming November 3, 2020 election, would amend the Warren City Charter and reduce the mayor's term limit from five terms to three. This proposal was approved by plaintiff on June 30, 2020. But on July 2, 2020, Mayor James R. Fouts vetoed the resolution. On July 14, 2020, plaintiff voted 7-0 to override that veto. On July 20, 2020, Buffa certified the resolution as being a "true and correct copy of the resolution adopted ... on June 30, 2020."

The next series of events were triggered by MCL 117.22, a provision of the Home Rule City Act, MCL 117.1 et seq. MCL 117.22 provides:

Every amendment to a city charter whether passed pursuant to the provisions of this act or heretofore granted or passed by the state legislature for the government of such city, before its submission to the electors , and every charter before the final adjournment of the commission, shall be transmitted to the governor of the state. If he shall approve it, he shall sign it ; if not, he shall return the charter to the commission and the amendment to the legislative body of the city, with his objections thereto, which shall be spread at large on the journal of the body receiving them, and if it be an amendment proposed by the legislative body, such body shall re-consider it, and if 2/3 of the members-elect agree to pass it, it shall be submitted to the electors. If it be an amendment proposed by initiatory petition, it shall be submitted to the electors notwithstanding such objections. [Emphasis added.]

On July 21, 2020, plaintiff, through counsel, transmitted the ballot proposal to Governor Gretchen Whitmer's Chief Legal Counsel and asked that it be approved. The record shows that an assistant attorney general reviewed the language and, on August 6, 2020, recommended that the Governor give her approval. The Governor did give her approval to the ballot proposal in a letter dated August 12, 2020, which was e-mailed to Buffa the morning of August 13, 2020. In the interim, on August 10, 2020, plaintiff's counsel forwarded the ballot language to the Macomb County Clerk's Office.

MCL 168.646a(2), a provision of the Michigan Election Law, MCL 168.1 et seq. , provides:

If a ballot question of a political subdivision of this state including, but not limited to, a county, city, village, township, school district, special use district, or other district is to be voted on at a regular election date or special election, the ballot wording of the ballot question must be certified to the proper local or county clerk not later than 4 p.m. on the twelfth Tuesday before the election. If the wording is certified to a clerk other than the county clerk, the clerk shall certify the ballot wording to the county clerk at least 82 days before the election. Petitions to place a county or local ballot question on the ballot at the election must be filed with the clerk at least 14 days before the date the ballot wording must be certified to the local clerk. [Emphasis added.]

Thus, the statute contains two timelines applicable to this matter. First, the ballot wording must be "certified to the proper local ... clerk not later than 4 p.m. on the twelfth Tuesday before the election." MCL 168.646a(2). All parties agree that the twelfth Tuesday before the election was August 11, 2020. Second, the local clerk "shall certify the ballot wording to the county clerk at least 82 days before the election." MCL 168.646a(2). All agree that 82 days before the November 3, 2020 election was August 13, 2020. In other words, both sides agree with guidance provided by the Secretary of State concerning MCL 168.646a(2) :

Filing Deadlines: County and Local Proposals

* * *

By 4:00 p.m.,       Ballot wording of county and local proposals to be
  August 11, 2020     presented at the November general election certified
                      to county and local clerks; local clerks receiving
                      ballot wording forward to county clerk within two
                      days (168.646a)[1]

[Editor's Note: The preceding image contains the reference for footnote¹ ].

Buffa has, to this point, refused to certify the ballot language to the Macomb County Clerk. In the trial court and on appeal, Buffa contends that the Governor's approval was required by 4:00 p.m. on August 11, 2020, and because that approval did not come until after that date, the requirement that the ballot language be certified to Buffa by 4:00 p.m. on August 11, 2020, was not satisfied. On this basis, Buffa contends that her duty to certify the language to the Macomb County Clerk on August 13, 2020, never arose. The trial court agreed with this logic and refused to issue the writ. This appeal followed.²

II. STANDARD OF REVIEW

"A trial court's decision to deny a writ of mandamus will not be reversed absent an abuse of discretion." Keaton v. Village of Beverly Hills , 202 Mich. App. 681, 683, 509 N.W.2d 544 (1993). To establish entitlement to the writ, a plaintiff must show that (1) the plaintiff "has a clear legal right to the performance of the specific duty sought, (2) the defendant has the clear legal duty to perform the act requested, (3) the act is ministerial, and (4) no other remedy exists that might achieve the same result." Coalition for a Safer Detroit v. Detroit City Clerk , 295 Mich. App. 362, 366-367, 820 N.W.2d 208 (2012) (quotation marks and citation omitted). Although the trial court's decision whether to issue a writ of mandamus is reviewed for an abuse of discretion, this Court reviews de novo the first two elements—the existence of a clear legal right and a clear legal duty—as those are questions of law. Id. To the extent that this Court must interpret the relevant statutes, questions of statutory interpretation are likewise reviewed de novo. PNC Nat'l Bank Ass'n v. Dep't of Treasury , 285 Mich. App. 504, 505, 778 N.W.2d 282 (2009).

III. ANALYSIS

Plaintiff argues that the trial court abused its discretion by refusing to issue a writ of mandamus compelling Buffa to immediately certify the ballot language to the Macomb Circuit Court. We agree.

The dispute in this case largely centers on the interaction between MCL 168.646a(2) and MCL 117.22. When interpreting statutes, this Court's duty is to effectuate the Legislature's intent. PNC Nat'l Bank Ass'n , 285 Mich. App. at 506, 778 N.W.2d 282. "The primary goal of statutory interpretation is to ascertain the legislative intent that may reasonably be inferred from the statutory language." Spectrum Health Hosps. v. Farm Bureau Mut. Ins. Co. of Mich. , 492 Mich. 503, 515, 821 N.W.2d 117 (2012) (quotation marks and citation omitted). Every word or phrase in a statute should be given its plain and ordinary meaning. PNC Nat'l Bank Ass'n , 285 Mich. App. at 506, 778 N.W.2d 282.

We conclude that the governor's approval under MCL 117.22 is not the certification to the local clerk that is required by 4:00 p.m. on the twelfth Tuesday before the election required by MCL 168.646a(2). First, the two statutes contain no references to each other. MCL 117.22 does not state that the governor's approval must be transmitted to any particular official, nor does it indicate that the governor's approval amounts to "certifi[cation]" to a local clerk under MCL 168.646a(2). Likewise, MCL 168.646a(2) does not speak of anything being received from the governor or otherwise refer to the approval process of MCL 117.22. That seems a clear indication that our Legislature did not intend for the governor's approval to stand as a prerequisite to the local clerk's act of certifying ballot language to the county clerk under MCL 168.646a(2).

Second, nothing in the plain language of the statutes implies that the governor's approval under MCL 117.22 is the certification contemplated by MCL 168.646a(2). Rather, the statutes use different terms; MCL 117.22 refers to the governor's "approv[al]" of an amendment to a city charter, while MCL 168.646a(2) speaks of certification. "When the Legislature uses different words, the words are generally intended to connote different meanings." United States Fidelity & Guaranty Co. v. Mich. Catastrophic Claims Ass'n (On Rehearing) , 484 Mich. 1, 14, 795 N.W.2d 101 (2009). The use of different terms suggests that the governor's approval under MCL 117.22 is not the certification to be made to the local clerk under MCL 168.646a(2).

Third, while MCL 168.646a(2) sets forth very specific deadlines by which certain acts must be taken, MCL 117.22 only states that the governor's approval must come "before [a proposal's] submission to the electors." Therefore, the trial court's reading of the statutes creates a conflict. The Governor's approval fully complied with MCL 117.22, as it came well before the proposal would be submitted to the electors. Indeed, it came before the deadline for Buffa to certify the ballot language to the Macomb County Clerk. Nonetheless, Buffa would...